Rights of fetus and mother in the abortion debate

In recent years, abortion [1] has become a live topic both at national and international...

CHAPTER 1…………………………………………………………………………………

I. Introduction…………………………………………………………………………..

II. Issues addressed by the paper………………………………………………………

III. Hypotheses put forward in the paper…………………………………………….

CHAPTER 2…………………………………………………………………………………

I. Rights of the Mother V. Rights of the Fetus....................................................

II. Abortion and Right of fetus………………………………………………………..

Fetus has right to life…………………………………………………………….

Abortion is violation of fetus’s right to life………………………………….

III. Abortion and Right of mother……………………………………………….........

Fetus does not have right to life………………………………………………..

Violation of right to liberty of mother………………………………………..

Right to privacy………………………………………………………………........

Right to dignity and health…………………………………………………........

CHAPTER 3…………………………………………………………………………………

I. SUGGESTIONS………………………………………………………………………..

CHAPTER 4…………………………………………………………………………………

I. Conclusion…………………………………………………………………………….

BIBLIOGRAPHY……………………………………………………………………………

Word Count (Excluding Footnotes, references)-

CHAPTER 1

I. Introduction

In recent years, abortion [1] has become a live topic both at national and international levels, attracting great academic, legislative and judicial comments. Abortion is in many jurisdictions, a crime; though the sanctions for its violation differ. Its incidence in the world is increasing rather than decreasing.

When confronted with the question of legal regulation of abortion, some argue that law should not compel an individual to carry an unwanted pregnancy and that "the State has no business in the bedrooms of the nation". [2] On the contrary, most of the religious heads and some others argue that "the child in the womb has the right to life, to the life he already possesses and no one has authority to deny it"; [3] and hence law should regulate abortion with iron hands. Even within the medical profession itself, there is a great divergence of views. Some are of the opinion that the woman’s desire is a sufficient justification. [4] On the other hand, there are doctors who for purely religious reasons object abortion in toto. [5] It is submitted that both the views are extreme and hence not sound. Mere desire of a woman to be relieved of her pregnancy should not be the sole justification for performing abortion. At the same time, where abortion is necessary to save the life of a woman, the doctor’s refusal on religious grounds may lead to her death making him guilty of manslaughter by negligence. Here arose the debate of right of fetus and right of mother.

The laws regarding abortion vary widely by country to country. Some states like Chile, El Salvador, Nicaragua, Malta and Vatican City ban the procedure of abortion exclusively. No exception is available for these strict rules. On contrary, some states like Canada and the United States of America and many other places no restriction on the provisions relating abortion. They are having the most liberal attitude towards abortion and right of mother to choose her pregnancy. Both the supporters and the opponents of legal abortion take a pose that their arguments address the fundamental human right.

For the purpose of conducting research, the project has been divided into four chapters.

The project starts with a general introduction on abortion and abortion debate and its position in the globe.

The second chapter deals with the abortion debate. Arguments on both fetal right groups and right to choose group, on the perspective of right has been discussed in this chapter.

The third chapter deals with the discussions of different scholars like Dworkin, Judith Thomson and Rawls on abortion debate. In the very chapter, the paper is pointing out the suggestion regarding abortion debate and making its stand.

Finally the fourth chapter concludes the paper.

II. Issues Addressed by the paper:

In the light of abortion debate, following research questions are addressed by the paper.

Whether the government has an obligation to preserve all human life regardless their viability?

Does fetus have the status of a legal person?

Whether individuals have unlimited autonomy with respect to their own reproductive systems?

Does the government have the right to impede a woman's right to decide whether or not to continue a pregnancy?

III. Hypothesis put forward by the paper

This paper is intended to analyze the rights of mother and fetus in the perspective of abortion. The paper has put forward the following hypotheses,

The government should protect the reproductive rights of mother.

Though it does not have any interest of its own, a fetus has no right to life. Abortion in such a case, does not amount to violation of right to life.

Any laws which criminalizes or prohibiting abortion is violation of woman’s right to privacy, right to dignity, right to health, right to liberty and ultimately the right to life.

CHAPTER 2

I. Rights of the Mother V. Rights of the Foetus

Women have the same rights as other people, but these are often seemed to be in conflict with those of her unborn child. Maternal-fetal conflict describes the ways that law, social policies and medical practices sometimes treat a pregnant woman’s interests in opposition to those of the fetus. This dichotomy creates a justification for restricting the autonomy of the pregnant woman. [6] Different arguments of these two groups, on violation of right, are addressed in this chapter.

II. Abortion and Right of fetus

Roe v. Wade [7] 's granting of constitutional protection for the right to terminate an unwanted pregnancy was, in many ways, just the beginning of the true abortion rights debate. The rights of the unborn are a main issue in this debate--mainly whether they have rights as a human person that could protect their lives from ending before birth. While the Court has since declined to officially and fully address the issue, there is a growing recognition of the personhood of the unborn child both from a medical and social standpoint.

Fetal rights are the legal or ethical rights of fetuses. In the context of abortion debates, fetal right is used as an argument in support of pro-life stand. The term Pro-life deals with the political and ethical opposition to the system of abortion, and asks for the legal prohibition or restriction of the same. The main claim of these pro-life movements is that fetus is a person. Therefore a fetus has a right to life. The pro-life stance is commonly supported by several religions. Pro-life persons argue that the value of human life is of supreme importance and believe that human life should be valued from fertilization until natural death. That is, a fetus is a person and any action which destroys an embryo or fetus is murder of a person. Any deliberate destruction of human life is considered ethically or morally wrong. The arguments of these schools of thought are discussed below.

Fetus has right to life

Today, there is a trend toward recognizing the unborn as both a human as well as a person afforded lawful protection. Modern scientific advances in the understanding of human development show that the fetus is indeed a human being from her first day of existence [8] .

The scientific and medical community has widely recognized the existence of human life from the very moment of conception. Many contemporary human embryologists maintain that a new human being comes to be at fertilization, which is the point at which the maternal and paternal chromosomes merge to form a set [9] .

At the time a woman become pregnant, she is carrying a new life. Science has proved that she is carrying a new human being from the moment of fertilization. Science has proved that, heart of the fetus will start to beat from 18-25 days and from the 43rd day itself electrical brainwave will start working. The absence of brain wave means indicates death. So at the time of abortion, the baby already has a beating heart and identified brain waves. So the baby living inside his/her mother is a distinct and unique person or human being.

The modern understanding of biologists is that the discovery of human DNA after just a few days of fertilization irrefutably demonstrates that the child, no matter how small, "is human life; it is not potential life or potentially human life." [10] Thus, "It is scientifically correct to say that an individual human life begins at conception, when egg and sperm join." This is no theory: scientific proof of a separate embryonic personhood is an indisputable and fundamental truth--a human being exists from conception [11] 

"In fusing together, the male and female gametes produce a fertilized single cell, the zygote, which is the start of a new individual." [12] So the fetus is fully developed even before the mother’s pregnancy gets noticed.

Thus the fetus is a person from the conception itself and the new person deserves full protection of the law as any other person. The fetus has a right to life and the government is obliged to protect the supreme right.

b) Abortion is violation of fetus’s right to life

Medical and scientific research has proven that life begins at conception [13] . Thus abortion is akin to murder as it is the fact of taking human life. Abortion is direct disobedience of the commonly accepted idea of the sanctity of human life.

No civilized societies in the globe permit a person to intentionally harm or take life of another person. Such an act is offence everywhere and is punishable. Abortion is not an exception or not a different to this general principle. The process of abortion is nothing but taking life of a person. So such an act of taking life of a person should not be allowed.

A mother cannot claim that “it is my body and absolutely my choice". Though fetus is a person, he/she has the right to life. According to pro-life advocates, Mother’s action should not infringe the right of fetus because right to life is the supreme right for a human being.

Viability, however, is not a useful concept in the feticide context. Viability occurs at different points in different pregnancies and requires medical expertise to diagnose. Except in the very last stages of pregnancy, no one other than a physician could be expected to know the fetus is viable [14] 

The fetus's life interest still warrants the state's protection under these circumstances, and the unwanted termination of the pregnancy must be separately recognized and vindicated. A crime that results in the death of a fetus, regardless of the specific knowledge of the actor, is objectively more traumatic and culpable than violence committed against a non-pregnant person because two separate harms result. [15] 

The Federal Constitutional Court of Germany has addressed the issue of abortion and fetal right in 1975, two years after Roe v. Wade [16] .In the judgment [17] , the court held that respect of human dignity requires the criminalization of abortion.

The court has considered the full range of arguments for abortion [18] , and then it specifically rejected the main points of reasoning in Roe v. Wade as well as its "term solution" as inconsistent with the constitutional guarantee of the right to life. The Basic Law for the Federal Republic of Germany [19] guarantees that “Everyone has the right to life" and it must be extended to the life of the unborn. In 1993, the Federal Constitutional Court of Germany [20]  held that [21] “life begins, according to the established biological-physiological knowledge, on the 14th day after conception" and the constitution guarantees the right to life to a fetus and recognizes him/her as a legal person from conception itself.

Many Legislative measures have been taken in order to assign a fetus the right to life even from the time of fertilization. Such a kind of law intends to give the fetus the same status as that of every member of the Homo sapiens species.

Article 4.1 of the American Convention on Human Rights, 1978 [22]  states "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception."

In 1983, the Eighth Amendment of the Constitution of Ireland, which is known as the "Pro-Life Amendment," has been added by popular referendum. The amendment has recognized "the right to life of the unborn".

III. Abortion and Right of mother

Mature woman, as mature human beings with all respect and dignity to be awarded the right to decide whether or not they carry a specific pregnancy to term. [23] In Roe, it was held that a woman’s right to choose not to bear a child was fundamental and could not be infringed. Right to privacy found broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

The pro-life schools ask for the right of fetus and demand for abolition of abortion. But here occurs a violation on the right of mother for choice. Pro-choice is a school of thought and movement which demands the protection of the rights of the mother to choose her fertility. Accordingly, a woman has a right to choose whether to continue or terminate her pregnancy.

Pro-choice advocates argue whether or not to continue with a pregnancy is an inviolable personal choice, as it involves a woman's body, personal health, and future. They believe that both parents' and children's lives are better when abortions are legal, thus preventing women from going to desperate lengths to obtain illegal abortions. More broadly, pro-choice advocates frame their beliefs in terms of individual liberty, reproductive freedom, and reproductive rights.

a) Fetus does not have right to life

Another argument on this side is that, embryo is not a legal person, thus it does not have any right. So there is no matter of violation of any personal rights if one got aborted.

When Roe v. Wade was decided, Pro-choice activists celebrated their "staggering victory," calling the Supreme Court opinion a "thunderbolt". [24] The core of Roe's judgment was that women could abort unwanted fetuses as the word ‘person’ used in the Fourteenth Amendment, does not include the unborn. The supreme court of United States has upheld the decision in some other recent judgments [25] too.

Nearly all abortions take place in the first trimester, when a fetus cannot exist independent of the mother. As it is attached by the placenta and umbilical cord, its health is dependent on her health. Thus, a fetus cannot be regarded as a separate entity as it cannot exist outside her womb.

Although science at that time was unclear as to when "viability" began, the Court [26] set standards based on "present medical knowledge" of the trimester progress of the pregnancy and declared that viability was reached only after the first trimester. Within the first trimester, no state interference was permissible; any decision to abort the pregnancy was left to the mother and her physician. In the second trimester, the state may begin to assert regulations, but only if reasonably related to the mother's physical well-being. Even into the third trimester when the state interest becomes compelling, any regulations must contain an exception "to preserve the life or health of the mother." [27] 

b) Violation of right to liberty of mother

Elective abortion was legalized by the Canadian Supreme Court in its landmark judgment on 1988 [28] . In this case, the Court determined that the national law banning abortion was unconstitutional in its entirety. Interestingly, the court relied--in part--on the fundamental nature of conscience to liberty when rendering its decision:

“The right to liberty . . . guarantees a degree of personal autonomy over important decisions intimately affecting their private lives…in a free and democratic society, the conscience of the individual must be paramount to that of the state" [29] 

The Canadian Court drew an internal connection between abortion rights and liberty of mother.

c) Right to privacy

The right to privacy of a woman implies some duties to the government for non interference in her private or personal matters, which includes the right to make decisions for her own child's future. [30] 

In Eisenstadt v. Baird [31] , Justice Brennan, for the court, pointed out the privacy in a way that, “If the right of privacy means anything, it is the right of the individual, married or not, to be in free from government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child" [32] 

The U.S has introduced The Freedom of Choice Act (FOCA) which declares the policy [33] of the United States that “every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman."The Act further says that the government is prohibited to interfere in her right to choose pregnancy.

The ultimate goal of the Act was to remove the substantive obstacles against the right to privacy and liberty of the women. The U.S Supreme Court in Roe held that right to privacy extends to a woman's decision to have an abortion. So, the abolition of abortion is violation of right to privacy of women.

d) Right to dignity and health

In the case of rape or incest, a woman is forced to carry pregnancy as a result of such a violent act, which would cause further psychological harm and clear violation of her right to dignity and right to health. Often a woman is too afraid to speak up or is unaware she is pregnant, thus the morning after pill is ineffective in these situations. It will violate her right to dignity if government prohibits abortion

If abortion is banned, or just more restricted, we would return to the days of 'back-street abortions'. That is the woman will be forced to resort the unhygienic and wild non-medical practices. These procedures obviously cause risks to women’s health.

The ability of a woman to have control of her body is critical to civil rights. Take away her reproductive choice is an utter violation of her right to life.

Former American President Thomas Jefferson once explained, "The price of freedom is eternal vigilance" He also warned, "It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others." [34] As this Note demonstrates, even in constitutional democracies that have provided their people with broad, enumerated individual liberties, the threat of erosion of rights is ever-present. No rights, even those that seem most fundamental are immune. They must be avidly protected and defended. [35] 

Each woman has bodily sovereignty, which is she has the duly qualified right to decide matters regarding her body. No one should intrude in her affairs against her will. The right to choose pregnancy is only up to that woman and the government and others only have a duty to take care her rights.

CHAPTER 3

I. SUGGESTIONS

Abortion may be classified into three broad categories depending upon the nature and circumstances under which it occurs. Like,

Natural abortion- Natural abortions is a very common phenomena and that may occur due to many reasons, such as bad health, defect in generative organs of the mother, shock, fear, joy, etc.

 Accidental abortion- Accidental abortion very often takes place because of pathological reasons where pregnancy cannot be completed and the uterus empties before the maturity of fetus

 Artificial or induced abortion - Induced abortions is denied in law as an untimely delivery voluntarily procured with intent to destroy the fetus. It is the most controversial kind of abortion. In these abortions, a physical attack on the fetus is normally required. It is not a just failure to aid the fetus.

Abortions falling under the first two categories should not be punishable. This doctrine is followed by almost all of the states. The disagreement is regarding the third class of abortion.

Judith Jarvis Thomson, in her well known paper A defense of abortion analyzed the controversy. According to her, if the fetus threatens its mother with death; two persons are involved, one whose life is threatened and one who threatens it. Both of them are innocent. One who is threatened is not threatened because of any fault. Similarly, the one who threatens does not threaten because of any fault. So the bystanders have no role in this issue, but the person threatened only can. That is, a woman surely can defend her life against the threat posed by the unborn child, even if doing so involves its death. [36] 

While replying the pro-lifers argument that fetus have the same right to life as that of his/her mother, she contended that right to life means right not to be killed unjustly. Thus abortions for just reasons [37] do not violate the right to life. [38] 

John Rawls critically analyzed the abortion right and equal status of women in the political systems and held that any reasonable balance of [the values of due respect for human life, ordered reproduction of political society over time, and the equality of women as equal citizens] will give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester. The reason for this is that at this early stage of pregnancy the political value of the equality of women is overriding, and this right is required to give it substance and force [39] 

Ronald Dworkin has been aware of this controversy and he made a detailed study on this issue. Dworkin has bore in mind the issues, the right of fetus to live and the right of mother to choose. He did not accept the extreme position taken by the derivative claimers of prohibition of abortion that, the fetus is a complete moral person from the moment of conception. Hence the unborn has the right to live and abortion is a murder or nearly a wrong as murder. Dworkin argued that everything that can be destroyed has an interest in not being destroyed.

Dworkin further argue that a fetus has no interest before the third trimester [40] .According to him; nothing can have interest without having some form of consciousness. A fetus cannot feel pain until late in pregnancy, because its brain is not sufficiently developed before then. The scientists have agreed that fetal brain will be sufficiently developed to feel pain from approximately the twenty sixth week [41] .

Thus, whether abortion is against the interest of a fetus must depend on whether the fetus itself has interests, not on whether interests will develop if no abortion takes place [42] . Something that is not alive does not have interests.  Also, just because something can develop into a person does not mean it has interests either. Once a fetus can live on its own it may have interests.  This is only after the third trimester. [43] 

Dworkin, Rawls and Thomson are pointing out the same thing but in different words. The summary of their arguments is, a woman has a constitutionally protected right to control the use of her own body. A decision to have children is fundamental to women’s physical, psychological and social health. They are in a way upholding the decision in Roe.

The paper putting forward the suggestion that Artificial or induced abortion should be allowed in the first two trimesters, because the fetus has not attained viability. Though the fetus attains sort of viability in the third semester, it has some interests of its own. So, the abortion will amount to the violation of its rights. The abortions in these periods should be regulated. Abortion in the last trimester should be punishable with some exceptions,

Abortion of pregnancies caused as a result of crimes like rape or incest

Abortion on the ground of health (physical and mental) condition of mother and health of fetus

Family planning

Abortion of pregnancies of minors

CHAPTER 4

I. Conclusion

“Abolition of a woman's right to abortion, when and if she wants it, amounts to compulsory maternity:  a form of rape by the State."

Edward Abbey [44] 

Any law relating abolition of abortion is nothing but a clear violation of a woman. It violates women’s rights to health, right to dignity, right liberty, right to privacy and in general, her right to life. Abortion must be legally permitted in order to protect these most basic rights of women. Unless making such provisions, it will be a heinous crime against a woman, as like rape, by the government.

Reproductive choice, as a general rule, should not be subject to government regulation. The decisions of whether, when, how, and with whom to bear or begat a child are personal choices made well within the protected zone of privacy doctrine. Therefore, the fundamental right of reproductive choice must be free of unwanted governmental intrusion except in very limited circumstances where there is an unreasonable risk to maternal heath, fetal viability, or both.

The paper came into a conclusion that, a fetus does not get a position of legal person till it has some interests of its own. The government has no obligation to preserve all human life despite their viability. The woman has ultimate autonomy to decide her reproductive rights and government should not impede her rights.